Crime Victims’ Rights: State Policy Adoption
Vicki R. Jeffries Bilton
February 2016
Abstract
The critical period in the later 20th century where the emergence of the concept of victims’ rights gained national attention exemplifies the construction of the need for policy redress. The peril of this era is illustrated by the accounts of distressing experiences of crime victims in the justice system. Amongst the opportunities afforded is the adoption of policies which critics may contend to be at odds with the rights of defendants. This epoch of growth in the salience of the call for victims’ rights produced responses by both the federal and state governments toward advancing the rights of victims. This study provides a content analysis of states’ victims’ rights constitutional amendmentsto assess the variation in how states have responded to these crises. Amendments are categorized in terms of the strength of the provisions.
Introduction
Now decades since the inception of the crime victims’ movement in the mid-1960s, a retrospective consideration of the policy prescriptions to redress the perceptions of a broken criminal justice system can offer scholars and practitioners valuable insight. Questions that have arisen in response to victims’ rights policies may involve the substantive and normative impact on the constitutional rights of criminal defendants, the effect on incarceration rates nationwide, the disproportionate impact of policies on minority or indigent offenders, in addition to the effectiveness in improving the experience of crime victims. State constitutional amendments are one type of policy that has been adopted throughout the states. Since 1982, approximately two thirds of the U.S. states adopted some form of constitutional amendment while contemporary debates continue in others.[1]This study examines state responses to these actions in the form of constitutional amendments. This exploratory content analysis focuses on the variation between specific aspects of victims’ rights constitutional amendments. The study focuses on the participatory rights of “the right to attend, the right to be heard, and the right to be informed” that are present in most state constitutional amendments.
The Crime Victims’ Movement
A number of developments are credited to contributing to the era known as the “crime victims’ movement” in the mid-1960s. These include the rising crime rates that saw increases from 200.2 in 1965 to 461.1 in 1974 to 539.9 in 1984 and finally to a peak rate of 758.2 in 1992. The trend changed course after 1992, when the rate progressively fell to 463.2 by 2004 (Federal Bureau of Investigation). This rise in crime occurred within the context of a lack of satisfaction with the criminal justice system (Young and Stein 2004). Juxtaposed to rising crime rates, the due process rights of criminal defendants were nationalized to the states by the U.S. Supreme Court under Chief Justice Earl Warren. Protections, such as involving the admissibility of illegally obtained evidence (Mapp v. Ohio), counsel for indigent defendants (Gideon v. Wainwright), and the right to be informed of one’s ability to remain silent and have a lawyer present while in custody and questioned by the police (Miranda v. Arizona), underscored the lack of protection and rights of victims in the criminal justice system (Mastrocinque 2010, 96).
Additional developments characterizing the crime victims’ movement included rising victim activism, the women’s movement, the growing field of victimology emerging in criminal justice and theadoption of victim compensation programs at the state level (Young and Stein 2004), as well as the role of presidential initiatives, federal and state legislation, and the emergence of victim organizations (Mastrocinque 2010). Among presidential initiatives, Ronald Reagan established National Crime Victims’ Rights Week in 1981 and commissioned the President’s Task Force on Victims of Crime in 1982. The Task Force’s Final Report included over 65 recommendations which involved police, courts, prosecutors, hospitals, mental health providers, and schools (President’s Task Force 1982).
According to Mastrocinque, states responded to the Task Force’s Final Report by adopting provisions for victim impact statements as well as passing bills of rights for crime victims in state statutes; additionally, some states provided victim rights as amendments to their constitution (2010, 98-101). The content of the victims’ rights statutory provisions and constitutional amendment provisions vary, however. The Victim Law database, coordinated through the Office of Victims of Crime, provides provisions for constitutions, statutes, court rules, as well as administrative rules for federal, state, territories, and tribal justice systems, and categorizes victims’ rights into ten different rights including the right to attend, the right to be informed, the right to be heard, the right to receive compensation, the right to receive restitution, the right to have property returned, the right to have protection, the right to have privacy, the right to have a speedy trial, and the right to have enforcement of victim remedies.
A cursory examination of these rights suggests there may be qualitative differences among the rights themselves. For example, some provisions, such as the right to receive compensation, may ensure victims receive financial assistance to meet the burdens of victimization (such as paying for burial expenses), whereas others (such as the right to be informed, the right to attend proceedings, and the right to be heard) appear to have a participatory quality enabling the victim to become actively involved in the criminal justice process; this latter group of rights may be qualitatively different from the former in its potential ability to have an effect on a defendant’s trial, sentence or parole.
Because of the potential qualitative difference between these “participatory” rights and other victims’ rights as well as their potential to implicate defendants’ rights, the present study will focus on the three rights - the right to attend, the right to be informed, and the right to be heard. It is important to understand how states have constructed such provisions and the extent to which they vary. Understanding variation is important because it may suggest very different experiences for victims in justice systems. It is important, as well, to the extent that victim participation may affect a criminal defendant or be associated with justice outcomes, such as higher incarceration rates. The research questions in the study are, “How do states vary in the strength of constitutional provisions for crime victims?” and “Which states have the strongest participatory provisions for crime victims?”
Victims’ Rights Literature
The manner in which crime victims have been affected by the criminal justice has since been an area of research investigation since the 1960s survey by the Law Enforcement Assistance Administration which found that rates of victimization were higher than law enforcement statistics had indicated. This discrepancy focused scholarly attention on crime victims and their lack of trust of the criminal justice system (Young and Stein 2004). Both domestic and international studies have conceptualized the notion of “secondary victimization” that a crime victim may experience by participating in the criminal justice system (Wemmers 2013; Gekoski, Adler and Gray’s 2013).
The perception of shortcomings in the victims’ criminal justice experience has led to the development of victim-centered approaches in the justice system. Restorative justice exemplifies such an approach by facilitating interaction between the parties involved (victim, offender and community) toward finding a mutually acceptable resolution for the crime that had been committed as well as focusing on healing for all involved parties (Van Camp and Wemmers2013, 118-119). In turn, researchers have investigated how victims experience such programs. Such studies have attempted to flesh out principles that are important to a victim-centered system as well as underscore the potential difference between the principles of a criminal justice program and the manner in which it is experience in real-world practice.
Among these, victim “satisfaction” has been utilized as the dependent variable in a number of studies. Satisfaction has been supported to be related to procedural justice, flexibility, caring by mediators, provision of dialogue and the possibility of pro-social effects – that is, the ability to help society by, for example, letting others know about how crime impacts people (Van Camp and Wemmers2013, 129-134), although there was no apparent relationship found with the use of victim impact statements (Davis and Smith 1994, 1). Other studies have looked beyond victim satisfaction at such outcomes as emotional recovery and increased psychological functioning (Kunst, Popelier and Varekamp 2014; Sims, Yost, and Abbott 2006). Some of these studies question the utility of programs, such as Sims, Yost, and Abbott’s 2006 finding that victims who used victim services did not have statistically significant increased psychological functioning than those that did not. Higher scores of psychological functioning instead correlated with demographic variables, such as being married and having higher education and income (Sims, Yost, and Abbott 2006).
Other victim-centered approaches have been studied as well. Choi, Green and Kapp’s 2010 study looked at one type of restorative justice program, victim offender mediation, which involves putting victims in a safe environment with the offender where they can agree on a redress to the harm committed (270). In this exploratory study, Choi et al. found that victim empowerment was facilitated when victims were able to share their experience and receive information about the crime. However, the authors also called attention to challenges associated with such practices. They found that when victims felt apologies were not made sincerely, some reported that the process was insensitive to their needs and that they were prevented from expressing their sincere feelings or compelled by the process to accept the offender apologies when they felt they were insincere (Choi et al. 2010, 285).
Similarly, De Mesmaecker’s study, while underscoring the potential benefit for victim impact statements, also outlines challenges victims face regarding the use of victim impact statements. These include aspects which may be promote confusion, such as preparing the statement,understanding the access the defendant may have to the statement, presenting the statement in court, and not comprehending the purpose for the statements (De Mesmaecker 2012, 145).
In addition to the manner in which policies affect victims, the manner in which victims’ policies affect the criminal justice system has also been studied. Policies such as allowing victim impact statements have been suggested as a means to increase involvement in the justice system while providing restitution was associated with victims’ willingness to report crimes (Davis and Smith 2004; Ruback, Cares and Hoskins’ 2008). Haynes found that community victim resource availability were associated with increased victim participation as well as longer periods of incarceration (2011). Laxminarayan found that the use of victim impact statements were associated with trust in the Dutch legal system by crime victims, which may in turn positively influence the functioning of the criminal justice system (2015, 283).
The impact of victims’ rights on defendants and criminal justice actors, has also received scholarly attention. Concerns with victims’ rights have included creating disparities in sentences and conflicting with the rights of defendants (Erez, Globokar and Ibarra 2014, 171). Gordon and Brodsky’s examined the effect of victim impact statements in capital cases but found little relationship between the use of victim impact statements and the participants’ view of mitigation and aggravation issues. That is, the participant groups viewed these factors similarly whether or not a victim impact statement had been used (2007, 51). Although Erez and Rogers acknowledged concerns regarding the effect of crime victims’ policies on the criminal justice system in their 1993 study, their qualitative study of criminal justice actors in Australia, highlights the strategies used to minimize the impact of victims’ input. They conclude that victim impact statements in Australia as well as other jurisdictions have been “successful in maintaining the time-honoured tradition of excluding victims from criminal justice with a thin veneer of being part of it” (1999, 235). Erez, Globokar and Ibarra (2014) describe the types of strategies court personnel employ to more effectively manage victims who are participating in the criminal justice system.
In addition to the effect of victims’ rights defendants and criminal justice actors, scholars have also argued that politics are affected by victims’ rights. For example, Elias asserts that the real beneficiaries of victim legislation are not victims, but politicians who have gained political and ideological benefits through the positive construction of victim groups, such as females, children, and the elderly (Elias 1990, 243-244). Similarly, Spalek suggests victims’ utility toward passage of certain crime policies. Spalek describes an “ideal victim” as one who reflects a particular gender, race, and class image and who is innocent from bringing the crime onto oneself; it is through these victims as the “mechanism” by which tough on crime programs may be adopted (22; 27).
Study
The present study sought to understand the variation within state victims’ rights. The study focusesat the state constitutional level. Although a more comprehensive understanding of these rights would entail an analysis of both constitutional amendments and statutory rights, this study begins with the assessment of how these rights are contained within constitutional provisions. Constitutional provisions are important for a number of reasons. Lupia et al. highlights that the legal status of constitutional amendments is more intractable than that of statutory legislation (2010, 1222). Hume calls attention to the notion that constitutional amendments carry not only “policy consequences” but they also carry “institutional consequences” as they restrict the actions of state political institutions (2011, 1098). Because constitutional amendments are important, it is necessary to understand the way in which state provisions may vary.
To examine victims’ rights constitutional amendments, a content analysis was performed utilizing the Victim Law database, provided by the Office of Victims of Crime and available at The Victim Law database categorizes victims’ rights under the topics of 1) the right to attend, 2) the right to be heard; 3) the right to be informed; 4) the right to protection; 5) the right to privacy; 6) the right to request compensation; 7) the right to restitution; 8) the right to return of property; 9) the right to speedy trial; 10) the right to enforcement. Within the ten rights categories, the present study focused on legal provisions for the three rights “right to attend,” “right to be heard,” and “right to be informed” for each of the 50 states in the United States. These rights were selected as they may be considered to expand victims’ ability to participate in the criminal justice process and, as such, may implicate defendants’ rights in the justice system.
Within each of these rights, the Victim Law database further sub-categorizes each provision (See Table 1). For example, the right to be informed is further differentiated into the subcategories of “notice of information” (such as in regard to the criminal justice process, the status of the defendant, as well as rights and benefits available to the victim); “review or obtain information” (such as in regard to requesting contact or additional information); and “victim notification systems” (such as referencing the mechanism by which victims receive information).
Table 1. Categories and Sub-categories of Three Victims’ Rights
Right to Attend / Right to be Informed / Right to be HeardProceedings / Notice of information / Confer with prosecutor
Victim cannot be excluded as witness / Review or obtain information / Communicate with court or other
Presence of support / Victim notification systems / Communicate with defendant
Employment protections
(Victim Law database)
A number of these subcategories had further subdivisions. For example, within the right to be heard, the subcategory “communications with court of other authority,” included further subdivisions of “impact of crime on victim,” “victim opinion,” or “other.” However, the present study did not differentiate by these additional divisions, but rather, searches were conducted by topic (such as “right to attend”) and then individual categories within each of these rights (such as “communications with court or other authority”).
Once the topic and categories were selected, the next search filter within the database was used to narrow the results by state. This study proceeded through the states in alphabetical order. Following the selection of the individual state, the subsequent search filter differentiated between the types of documents to search. This study searched within state constitutions, statutes, court rules, and administrative rules. The comprehensive search was conducted to obtain additional information regarding variation between policies, but only results from the analysis of constitutional amendments are reported in the present study. After the types of documents were selected, the final search filter involved the type of victim. The database allows users to narrow the results by type of victim such as by characteristic of the victim, crime, or offender. For example, characteristic of victims could include being a child, elderly person, or person with a disability. Characteristic of crime could include domestic violence, financial/property crime, human trafficking, sexual assault or stalking. Characteristic of offender could include juvenile offender or offender with mental illness. However, for the purpose of this study, the category “general” was selected, which means it did not cover those laws which applied to only special groups of victims.
A content analysis was performed using a coding sheet for each state(See Appendix A for coding sheet example). For each state’s constitution, the y-axis of the table listed each right (such as right to attend) with each respective subsection (such as attend proceedings, witness exclusion, support person, and employer protections). The content analysis involved a search of each of these subsections. When the database returned search items, the items were manually reviewed to confirm relevance. Returns that indicated a state possessed that particular provision were marked in the coding sheet as a check mark and assigned a value of 1.